I-9 Compliance: Now in the Government’s Crosshairs

The U.S. Department of Labor devoted few resources to enforcement of the Immigration Reform and Control Act from its passage in 1986 until 9/11. That was particularly so in regard to the requirement that employers verify new employees’ right to work in the United States using the simple one page Form I-9. In the post 9/11 era however, the not so simple 69-page I-9 employer handbook, and the shift of enforcement responsibility to the Department of Homeland Security, underscore the renewed significance of employer responsibility to properly manage the I-9 process.

In 2010, Immigration and Customs Enforcement (“ICE”) imposed more than $7 million in fines on U.S. employers for I-9 compliance violations. Retailer Abercrombie & Fitch alone paid just over $1 million in fines from one audit. Remarkably, ICE did not allege that Abercrombie hired any illegal workers; only that there were many mistakes in the manner in which the forms were completed. Fines are based on the number of invalid I-9 forms that an employer has and the dollar amount for each violation can increase based on the volume of mistakes. If an ICE audit determines that the discrepancies on the forms are not merely administrative errors but rather because an employer either knowingly hired an illegal alien or failed to terminate one upon discovery, the penalties can be as high as $16,000 for each violation and criminal charges may be pursued.

ICE ratcheted up I-9 enforcement in 2011, compiling the following statistics:

· 2,496 I-9 audits conducted

· 3,291 worksite enforcement cases initiated

· 221 employers criminally charged

· 385 Final Orders issued for $10.4+ million in fines

· 115 individuals/97 businesses debarred fed contracts

In one 2011 audit alone, ICE settled with Advanced Containment Systems, Inc. for $2 million for its I-9 administrative failures. ICE has also pursued discrimination claims against employers that demand specific documents from employees who they suspect may not have legal status.

Although 2012 statistics are not yet published, ICE did not let up on its I-9 enforcement efforts and has announced that it will continue to make it a priority in 2013.

Employers must ensure that they have appropriate processes in place for I-9 compliance, that those processes are uniformly applied to all new hires, and that they review all existing I-9s to check for and correct any errors.